BENCH BOOK. Judge Kent Holmberg - Third District Court. Summit County

BENCH BOOK Judge Kent Holmberg - Third District Court Summit County 1. Discovery Q: What is your practice with respect to setting an initial case schedule? Modifying it once set? A: Scheduling conferences and case management orders are rarely necessary under current rules. In cases where they are useful to the parties, I m happy to hold them in person or by telephone. I have no special requirements for Case Management or Scheduling Orders. Q: What is your practice regarding discovery disputes? How do you handle status and scheduling matters for discovery issues? A: After a Statement of Discovery Issue has been submitted for decision, I will review it and decide whether I can either sign or modify the proposed Order. (I find it helpful if, in this instance, both parties submit proposed Orders for this purpose.) If not, I will arrange an expedited conference call to hear from the parties before ruling. In rare instances, I may require additional briefing. Q: What is your approach to granting extraordinary discovery? A: I generally grant stipulations for extraordinary discovery, but if the case is more than a year old, I may modify the Order to make clear that no further extensions will be permitted. If a request for extraordinary discovery is opposed, I apply the factors set forth in the Rule. Q: What is your practice regarding sanctions for discovery abuses? A: If one party is clearly at fault for a particular discovery dispute, I will often order that party to pay the other side s attorney fees. In particularly contentious cases, I will likely make clear, at the beginning of the case, that I will award fees to any prevailing party on a discovery dispute as a matter of course. My view is that more severe sanctions are only warranted on very rare occasion; I find that counsel too often seek the ultimate sanction (i.e., dismissal of a case or the entry of judgment) and I have yet to see a case where such a severe sanction that was warranted. Q: Are you generally available to hear disputes that arise during depositions? 1

A: Yes; however, keep in mind that my clerks and I have busy schedules and so it may not be feasible. But if I am available, and the dispute is truly an important one, I am willing to moderate if time allows. 2. Motions Q: Do you prefer that counsel provide copies of the cited authorities prior to a hearing? What about unpublished cases? A: Copies are not necessary. If there are important cases, I will likely read them online and print them as needed. The exception, of course, are unpublished cases that I might not be able to access on Westlaw. Q: Do you appreciate courtesy copies of briefs being delivered to your chambers prior to a motion hearing? If so, how far in advance do you want them? A: Courtesy copies are appreciated for dispositive motions, motions in limine, and any other motions where there is substantive legal argument. They are not needed for procedural motions (i.e., motions to amend, motions to bifurcate, etc.). My law clerk, Alexandra Doctorman is located at the Matheson Courthouse in Salt Lake City. Please deliver hard courtesy copies to Ms. Doctorman at the 4 th Floor North Desk at Matheson and email courtesy copy to 3rdsilversummitteam@utcourts.gov for my personal use in Summit County. Hard courtesy copies should be double-sided, and may contain more than one page per side. Please only include truly necessary exhibits; i.e., the contract at issue, important deposition testimony, etc. (I can always access the exhibits as needed online.) As far as timing, I prefer to receive courtesy copies at least two weeks before the scheduled hearing. If the matter is fully briefed, feel free to send them to me further in advance. If, depending on my schedule and my clerk s schedule, we review the matter further in advance before we receive them, we may print them off ourselves, in which case I may tell you that courtesy copies are no longer needed. Q: What is your policy on allowing overlength memoranda? Extensions of the briefing schedule? A: I have rarely denied a motion to file an overlength memo. (But please make sure your proposed order expressly states the number of overlength pages sought.) Keep in mind, however, that most briefs are better if they are shorter and to the point. I can t imagine not granting a reasonable request for an extension. Q: Do you schedule motion hearings automatically upon receipt of notices to submit, or do you prefer or require that counsel call to schedule hearings? 2

A: First, keep in mind that I won t know about a motion until we receive a Request to Submit for Decision. When I receive a Request to Submit, I look at the motion and supporting memoranda to determine whether I can decide the matter on the papers. (That is usually the case for purely procedural motions.) Otherwise, I will schedule a hearing. I will usually schedule the hearing for the amount of time it appears to me will be necessary given the issues in dispute, as soon as my schedule allows. If the time scheduled is inconvenient, we are willing to re-schedule. It is your job to first contact opposing counsel to gather some mutually agreeable dates. Then, file a request to continue stating the dates and times that work for everyone. Q: Under what circumstances do you decline to grant a request for oral argument? A: If the motion is purely procedural and it appears I can decide the matter on the briefs, I may do so. I will almost always schedule a hearing on substantive motions whether or not oral argument is requested unless the matter has been authoritatively decided. Q: Do you have any recommendations or preferences regarding written advocacy that you would like counsel to be aware of? A: A useful brief gets to the point, is succinct, and generally provides a logical means of analysis. Metaphors and quotations from sources aside from case law are well thought-out, fresh, and applicable. The writing is crisp and words are chosen carefully and sparingly. An unhelpful brief spends excessive time on wellknown legal standards, tries to argue every point conceivable, and its strong arguments are indistinguishable from the make-weight arguments. Its metaphors are hackneyed, and its popular quotes are not only stale, but probably inapplicable to the case at hand. The writing is overblown and verbose. Editing takes confidence, even courage. But aggressive editing will make your written arguments easier to understand and ultimately more persuasive. A short introduction containing the essence of your argument is very helpful in assisting me to mentally frame, and place in context, where you are going with your detailed argument. Make your best arguments. Frivolous arguments not only take up room, but they cause me to question the credibility of the other arguments. (Arguments really are known by the company they keep.) Get rid of unnecessary adjectives and adverbs! Make your point with the facts and the law. If you need to rely on hyperbole, it leaves the reader with the impression that the facts and law, standing alone, are not strong enough to make your case. Refrain from making disparaging comments about a party, counsel or the Court. I may strike filings that violate this rule. 3

Finally, remember, I am a Utah State Court judge. I am sworn to follow Utah law. Let me know what the applicable Utah law is. Q: Do you have any particular guidelines or preferences that you expect counsel to follow at oral argument? A: Normally, I will have had the time to evaluate the written material submitted and read the key cases and statutes cited. I will direct your argument to any areas which I feel need further clarification. Q: Do you have any guidelines or preferences that you expect counsel to follow regarding temporary restraining orders or preliminary injunctions? A: Read Rules 64 and 65 and make sure that all of the requirements have been met before seeking any type of extraordinary relief. In most instances, I will try to schedule a TRO within a few days and require that notice be given to the other side. (Commissioners handle all domestic TRO s.) Too often, these Rules are used as vehicles to improperly short-circuit the litigation process, or to gain some tactical advantage. Extraordinary relief should only be granted in truly extraordinary circumstances. 3. Final Pretrial Conference Q: In your view, what is the purpose of the final pretrial conference? A: When I schedule the matter for trial I will enter a Pretrial Order setting out the parties responsibilities leading up to trial; I will also schedule a Final Pretrial Conference to take place about two weeks before a jury trial. Final Pretrials are extremely important to the Court; remember, that may be my first introduction to your case. I expect the following things to be done prior to the Final Pretrial Conference (FPTC): 1) all motions in limine and related motions are to be filed and ready to be argued at the FPTC; 2) trial disclosures, and all objections thereto, are to be filed so we can address them at the FPTC; 3) designate all deposition testimony to be read at trial; 4) if the parties have submitted a stipulated questionnaire it will be reviewed (more on jury questionnaires later); and 5) if the parties would like any specific voir dire questions, that too must be filed prior to the FPTC. Also, prior to the FPTC, I will expect the lawyers to have met and conferred to discuss exhibits and jury instructions. I expect the parties to reach stipulations wherever possible regarding the admissibility of exhibits and as to standard MUJI instructions. Q: What steps do you take, if any, at a final pretrial conference to encourage settlement of the case? 4

4. Jury Trials A: I want to be certain that genuine settlement discussions have been undertaken recently. Q: Do you require clients to be present at final pretrial conferences? A: No. Q: Do you typically hear motions in limine and other trial-related motions at the final pretrial conference, or at another time? A: Typically at pretrial, unless submitted earlier. Q: Do you appreciate or require pre-trial briefs from counsel? A: Depends on the case. In a bench trial, yes. In a jury trial with issues that are novel or complex. A Note About Pretrial Disclosures: The parties should be aware of some issues that routinely come up regarding pretrial disclosures, and the way in which I handle them. First, if a witness or exhibit is not identified in pretrial disclosures, they will not be permitted at trial. Second, if the witness or exhibit was not properly disclosed during the case, they might not be permitted at trial. (In other words, a witness or exhibit cannot normally be identified, for the first time, just prior to trial.) Third, the Court expects the parties to have properly designated nonretained experts under Rule 26(a)(4)(A), and will limit testimony to the specific opinions stated therein. Finally, if a party utterly fails to make a proper disclosure, the remedy is not to dismiss the case or enter judgment. The party may testify on their own behalf. The remedy is to strike all exhibits and all other possible witnesses. A Note About Experts: Prior to trial, the Court requests copies of all expert designations, reports and depositions for any testifying expert. I hope to review those materials before an expert testifies at trial to make sure that he or she only testifies as to properly disclosed opinions. In the event one party suspects the other will attempt to use an expert for an undisclosed opinion, it would be good practice to raise that beforehand. Parties should recognize, however, that that can be difficult if the expert has been deposed versus a disclosed report. Jury Selection: Q: How is voir dire conducted in your courtroom? Do you allow counsel to participate in voir dire? If so, to what extent? A: Unless a survey is used, after initial introductions of parties, counsel, and each panel member, neutrally worded questions are 5

addressed to the panel overall. I typically ask these in yes or no format. Panel members answer by a show of hands. In the case of a survey or after questions addressed to all the panel members are complete, follow up questions may be addressed to the panel members on an individual basis in chambers. In chambers, counsel may ask any follow-up questions directly. Counsel may suggest areas of inquiry. Q: When do you require requested voir dire questions to be submitted? A: Before the Final Pretrial Conference. Q: Do you allow or encourage the use of jury questionnaires? If so, by when must jury questionnaires be filed? A: Simple jury questionnaires are allowed in most cases. The parties are required to stipulate to the questions and file them along with a Request to Submit for court approval. Once the court approves the questions, the parties then need to put the questions on an online questionnaire with a third-party survey provider and provide the court clerk with small stickers to be placed on the notices to be mailed out by the court to the prospective jurors. The stickers direct the prospective jurors to complete the survey. The attorneys will have access to the responses when the prospective juror completes the online survey questionnaire. Jury Instructions: Q: When do you require instructions and special verdict form to be submitted? A: Stipulated and non-stipulated (with authorities) proposed jury instructions and special verdict form are required at the Final Pretrial Conference. I realize that there are some rare instances when a jury instruction may be prepared during trial due to unforeseen circumstances at trial; however, if proposed jury instructions and special verdict form are not submitted prior to the final pretrial conference, the court may strike the matter from the trial calendar. Q: Do you have a set of standard jury instructions that you use? If so, how can counsel obtain a copy? A: You may obtain a standard set by contacting the Summit County court clerks. 6

Trial Procedure: Q: What form do you prefer requested instructions to take (e.g., do you prefer instructions accompanied by supporting cases, etc.)? Is a citation to MUJI 1 st or 2 nd sufficient legal authority? A: Only contested or unusual instructions require authority. MUJI is sufficient. Q: Do you prefer to receive an electronic copy of requested instructions? A: Yes, in editable form, (Word or WordPerfect, not pdf). Q: When do you prefer to hear disputes over jury instructions: A: In the perfect world, I would like to hear disputes at the FPTC. However, if we do not get to them, for whatever reason, the parties should be prepared to address them after the jury is sent home on the first day of trial. A Note about Verdict Forms: Often times, especially in more complicated cases, not enough attention is paid to the verdict forms. Verdict forms should not be an afterthought. Give them the same attention you give to instructions. Q: What is your preferred trial schedule? A: My trial schedule 9:00 to 5:00, with a lunch break from 12:00 to 1:30 and with breaks in the morning and afternoon. Obviously, this is a guide and will likely vary depending on the circumstances of a given trial. I find that most people start to lose interest after about an hour and a half and so I like to take breaks to keep the jurors fresh. For multi-week trials I might consider an 8:30-2:30 trial schedule upon request; that should be raised at the pretrial conference when we schedule the trial. Q: Do you prefer to hear disputes over trial exhibits before trial or during: A: I prefer to hear any dispute that can be anticipated at the FPTC. I also believe that most exhibits can and should be stipulated to prior to the FPTC and certainly prior to trial. Q: What is your practice regarding the use of trial exhibits or demonstratives during opening statements? 7

A: Any stipulated exhibit may be used in opening statements. If there is no stipulation, seek permission at the FPTC; the morning of trial may be too late. Q: What are your preferences with respect to trial exhibits? What are the preferences of your clerks with respect to trial exhibits? A: In a perfect world, all exhibits will be stipulated and pre-marked prior to trial. For non-stipulated exhibits, they should be pre-marked. The parties must bring an index of exhibits on the morning of trial for my clerks. Keep in mind that my clerks have to manage the admissibility of exhibits along with a million other things they are doing. Please do whatever you can to accommodate them. The parties are required to provide copies of the original exhibits for the witness, opposing counsel and courtesy copies for the judge Q: Do you have any guidelines or preferences regarding the use of technology at trial? A: Counsel are welcome to come in advance to test their equipment. The Court s technology is limited, so bear in mind it might be more effective to bring your own. We now have media carts available that connect to your device with either HD or VGA cable. They need to be reserved as soon as you know your trial date. Test any technology, yours or the Court s, in advance. (Note: Make sure to bring your own cords; the Court does not provide them.) Q: What are your preferences and/or procedures related to witness scheduling? A: First, if you are presenting your case, make sure that you have a witness ready to go at all times. I do not like to waste the jury s time and they want to plow through this stuff. Avoid unnecessary delays! I expect that parties will cooperate with one another regarding the scheduling of witnesses, and taking witnesses out of turn, if necessary. Q: Do you allow counsel to move freely around the courtroom during trial? A: Yes. Prohibited Jury Arguments Counsel should be aware that I expect them to follow well-established Utah law concerning permissible closing arguments. The following are not permitted: 8

1. Arguments to the effect that the jury should be swayed by their emotion, sympathy, passion or prejudice, rather than the facts of this case and the applicable law. 2. Arguments asking the jury to send a message to the community, the medical industry or otherwise. 3. Arguments asking the jury to prevent this from happening again. 4. Arguments that ask the jury to apply either a general safety standard or a community standard based on jurors own beliefs. 5. Arguments that suggest that the jury serves as the conscience of the community in rendering a verdict. 5. Bench Trials 6. Post-trial Issues Q: Do you have any particular guidelines or preferences that counsel should be aware of regarding bench trials as opposed to jury trials? A: Remember your audience. If I am the fact finder, get to the point. I will likely engage with counsel during witness examinations if I think it is helpful, or to help explain why a line of questioning is relevant, and to which issues. I will likely ask the witness questions which I will not do during a jury trial. 9 To save time, I am amenable to stipulations designed to speed up the process. For example, allowing the parties to present evidence by proffer of secondary witnesses and relying on expert reports and deposition testimony (which the Court can review prior to trial.) Q: Do you appreciate or require proposed findings of fact and conclusions of law from counsel? A: Not unless requested by the court. Q: Do you appreciate or require post-trial briefs from counsel? A: Only if absolutely necessary. If there are complicated legal issues, I d like to know about them in a trial brief before the trial, and counsel can develop their arguments in closing argument. Only rarely would I require additional legal briefing post-trial. 7. Technology in the Courtoom Q: To what extent do you allow the use of technology in your courtroom? 9

8. Criminal Matters A: I will always allow it. But while it is helpful for jury trials, I rarely find it helpful in motion practice and in bench trials. If you use it, make sure you have full command of it. Q: Do you find the use of any particular type of computer-assisted presentations effective and/or useful? A: I think the best uses of technology are to project exhibits to a jury and Power Point presentations used to accompany a closing argument. The use of technology is far more important in jury trials than in any other proceedings. Q: Do you find the use of any particular type of computer-assisted presentations unhelpful? A: One problem with technology assisted presentations is that they can be too rigid. Lawyers need to be able to adapt and change course. Sometimes, a prescripted Power Point, doesn t easily allow that. Q: How do you handle requests for continuance on pretrials, arraignments or roll calls? A: Ordinarily I require a stipulation, except in emergencies. Q: When may the issue of bail best be addressed in your courtroom? A: Generally I prefer to have pretrial services provide an evaluation, but I am willing to hear arguments on bond in first appearance court or upon notice pursuant to rule. Q: What is your policy, if any, on pleas in abeyance? A: No special policy. Q: What information do you want from counsel at the time of sentencing? A: Whatever counsel thinks might be helpful to the case at hand. This is a pretty broad question. Q: Are private pre-sentence evaluations useful or encouraged? A: If they are well done and cost is not an object. Q: Do you have any standard sentences the Bar should be advised about, i.e., DUI sentencings, acceptance of alcohol-related recklessness? A: N/A. 10

Q: How should counsel on busy law and motion calendar handle calling a case? A: Approach the lectern when it s free and ask to call your case. 9. Special Issues for Domestic Cases Q: Are there any special issues that arise in your courtroom in domestic cases of which you would like the bar to be aware? A: I have found that the best domestic lawyers are problem solvers who are professional and collaborate with opposing counsel to bring about quick results especially when child custody is at issue. Q: What documents do you want filed before appearing on a motion for temporary orders? A: This is handled by the Commissioners. Q: What documents do you want filed before appearing on a motion for a custody evaluator? A: This is handled by the Commissioners. Q: What are the special procedures for failing a Motion for an Order to Show Cause? A: This is handled by the Commissioners. Q: Do you have any preferences for compelling and filing financial declarations? Any practice pointers for counsel as to how you would like these completed or filed? A: Financial declarations are extremely important to the Court on issues of child support and alimony. I think often times the parties don t spend enough time and pay proper attention to filling them out. I expect a good declaration to have proper backup support (especially for the monthly expenses.) And, I find declarations to be less trustworthy if a party has submitted a series of declarations that vary wildly on certain numbers. Finally, although a declaration is a sworn statement of present finances, I welcome (and in fact I am often required to consider) a sworn submission (or other competent evidence) of the couple s finances during the marriage and at the time of separation. If you are advocating to the court that a date other than trial date should be used for a financial issue, you will need to present evidence as of the date you are advocating. Q: Do you want any type of motion binder delivered? Is this helpful, or does e-filing render these obsolete? 11

A: It is rare that a motion binder is necessary in domestic cases. I may request one as needed. Q: Do you appreciate courtesy copies of briefs being delivered to your chambers prior to a motion hearing? If so, how far in advance do you want them, and how do you want them assembled (folder, binders, with or without exhibit tabs, etc.) A: Courtesy copies are appreciated for dispositive motions, motions in limine, and any other motions where there is substantive legal argument. They are not needed for procedural motions (i.e., motions to amend, motions to bifurcate, etc.). My law clerk, Alexandra Doctorman is located at the Matheson Courthouse in Salt Lake City. Please deliver hard courtesy copies to Ms. Doctorman at the 4 th Floor North Desk at Matheson and email courtesy copy to 3rdsilversummitteam@utcourts.gov for my personal use in Summit County. Hard courtesy copies should be double-sided, and may contain more than one page per side. Please only include truly necessary exhibits; i.e., the contract at issue, important deposition testimony, etc. (I can always access the exhibits as needed online.) As far as timing, I prefer to receive courtesy copies at least two weeks before the scheduled hearing. If the matter is fully briefed, feel free to send them to me further in advance. If, depending on my schedule and my clerk s schedule, we review the matter further in advance before we receive them, we may print them off ourselves, in which case I may tell you that courtesy copies are no longer needed. Q: Is there a special way that you would like proposed orders to be filed? A: Use the efiling system. Q: How should discovery deadlines be handled on petitions to modify, where a schedule is not automatically issued by the court? A: By stipulation or by requesting a scheduling conference with the Commissioner. Q: Do you have a policy on child interviews with respect to custody? A: I have yet to have a case where I have concluded that the need to interview a child outweighed the negative impacts of requiring a child to testify. I remain concerned both about requiring a child to go through the stressful exercise of testifying in court (or interviewing with the Court), and having a child having to live with the belief that he or she may have affected the outcome of the proceeding. 12

10. Courtroom Protocol Q: Is lack of civility ever a problem in your courtroom? If so, what steps do you take to address it? A: It is rarely a problem. Once or twice I have called a recess to allow people to cool down. Most of the time, attorneys and parties act properly. Q: What are your opinions regarding courtroom dress? A: Traditional courtroom attire. Q: Do you allow children in your courtroom? A: Of course. Q: What is your courtroom practice with respect to attorney cell phones? Clients? Those in the gallery? A: No phone calls may be taken in the courtroom. No recordings, pictures, video etc. in the courtroom. There are exceptions for press people who have prior approval of the court. For attorneys, phones must be silenced. I have no objections to attorneys using the data features of their phones while in front of the bar. Anyone in the gallery, attorneys and non-attorneys, must have their phones silenced and out of sight. If phones are not silenced and out of sight, the bailiffs will confiscate them. Q: What, if anything, do you do to enforce promptness in your courtroom? A: I recognize that there are many reasons why someone may be late. If you are late, please call my clerks and let them know as soon as possible. I generally will not take action until it becomes a repeat problem. 11. Comments from Case Managers and Judicial Assistants Q: The name and phone number of my case manager(s) is: A: Debbie K. Foust (435) 615-4310 Q: The name and phone number of my judicial assistant(s) is: A: Bridgette Blonquist (435) 615-4303 & Rhonda Meek (435) 615-4306 13

My case manager and judicial assistants want you to please do these things: Please do not call the court to continue a courts order to show cause to dismiss hearing for failure to prosecute. You may submit a certificate of readiness, a dispositive motion or other pleading showing that the case is moving forward 2 days prior to the hearing to have the matter cancelled. Please provide an exhibit list to the clerk on the morning of trial. You are expected to have an organized exhibit binder, pre-marked and tabbed, containing all exhibits. Please provide an original exhibit binder as well as copies for the Court and opposing counsel. Please do not call the clerk for special favors or considerations. You are expected to follow the rules and file the appropriate paperwork with the court. Our office processes things very quickly and you can be rest assured that your matter will be handled as quickly as possible. Please do not provide flash drives to the Court unless requested. Due to security reasons we cannot accept them without going through scanning processes through our IT department. Our local standing order provides for delivering the jury list and jury seating chart to counsel by NOON the day before trial. Please do not ask for it sooner. Please remember that a failure to plan on your part, does not constitute an emergency on our part. 12: Other items Q: Do you have a judicial biography that you would like hyperlinked to your bench book? If so, please advise us of the link to this information or provide us with a copy of the same so we may link it to your bench book. A: https://www.utcourts.gov/judgesbios/showgallery.asp?dist=3&ct_type=d#3266 Q: Do you have any stock jury instructions, verdict forms, or other information you would like hyperlinked to your bench book? If so please advise us to the link to this information or provide us with copies of the same so we may link it to your bench book. A: Not at this time. 14